The U.S. Supreme Court has upheld a $6.7 million jury award to Diana Levine, a musician who lost her arm because of a botched injection of an anti-nausea medication. The court in its 6-3 decision rejected a plea by Wyeth Pharmaceuticals for limiting lawsuits against drug makers. The claim by Wyeth that federal approval of its Phenergan anti-nausea drug should have shielded the company from lawsuits like the one filed by Ms. Levine had no merit and in the high court was correct in its ruling.

The decision is the second during the high court’s current term to reject business groups’ arguments that federal regulation effectively pre-empts consumer complaints under state law. In the Levine case a Vermont jury agreed with her claim that Wyeth failed to provide a strong and clear warning about the risks of quickly injecting the drug into a vein, a method called IV push. Gangrene is almost a certainty if the injection accidentally hits an artery — and that’s exactly what happened to Ms. Levine. This courageous woman, once a professional guitar and piano player, now plays with one hand and sings. She displayed tremendous courage and tenacity in taking on the powerful pharmaceutical industry.

Wyeth appealed the jury’s verdict and, backed by the Bush Administration and powerful forces from Corporate America, argued that once a drug’s warning label gets approval from the Food and Drug Administration, the label can’t be changed without further FDA approval. Wyeth contended that consumers cannot pursue state law claims when they are harmed by the product. Justice John Paul Stevens, writing the majority opinion, said Wyeth could “unilaterally strengthen its warning.” Justice Stevens was persuaded that until a recent change by the FDA, the agency “traditionally regarded state law as a complementary form of drug regulation” because it monitors 11,000 drugs. Justice Clarence Thomas agreed with the outcome of the case and wrote a concurring opinion. Justice Samuel Alito wrote a dissent that was joined by Chief Justice John Roberts and Justice Antonin Scalia, which really came as no surprise.

The FDA has approved the use of Phenergan by injection, including the method at issue in the Levine case. The drug has been available for decades to treat nausea and when used properly, both sides agree it is safe and effective. The Bush administration and business groups aggressively pushed limits on lawsuits through the doctrine of preemption — asserting the primacy of federal regulation over rules that might differ from state to state. The Supreme Court agreed in an isolated and quite different case on its facts, ruling last term that FDA approval shields medical devices from most lawsuits. That case turned on a provision of federal law prohibiting states from imposing their own requirements on the devices.

The Levine case was important to consumers because the Bush Administration and Wyeth contended that, although the federal Food, Drug and Cosmetic Act lacks a similar provision, drug manufacturers also are protected from lawsuits involving federally approved drugs. Justice Stevens said there could be circumstances where consumer lawsuits would not be allowed, including if the FDA had considered and rejected a stronger warning label. But that was not the case with Phenergan the Justice wrote. He pointed out that the Justices had discussed that the FDA did not consider and reject a stronger warning against IV-push injection of Phenergan. Obviously, the result in the Levine case was important, not only to Ms. Levine, but to every single American citizen. It followed exactly how the FDA had interpreted the law for years prior to the Bush Administration forcing it to change its well-established position.

THE LEVINE RULING WILL HAVE AN IMPACT BEYOND DRUG FIRMS

The Supreme Court’s ruling in the Wyeth case will affect a great number of pharmaceutical-industry cases, ranging from antidepressants to hormone-replacement therapy. Fortunately for the American people, the decision will have an effect outside the drug cases. It will help to undo the edifice of federal regulation built up during the eight years of the Bush Administration which were totally anti-consumer. The Bush gang worked very hard in its efforts to shield federally-regulated products from state court lawsuits. As stated above, Wyeth got strong backing from the Bush Administration in the Levine case. Fortunately for consumers the high court followed the law.

The White House strategy to preempt state laws, which got under way in 2001, used agency regulations as a way to sidestep Congress. The policy had strong backing from the U.S. Chamber of Commerce and its tort reform arm, the Institute for Legal Reform. Years of precedent relating to federal preemption were totally ignored by the Bush Administration and its allies. The Bush Administration inserted preemption language into 50 different regulations from agencies including the National Highway Traffic Safety Administration, the Federal Drug Administration, the Federal Railroad Administration, the Pipeline and Hazardous Materials Safety Administration, and the Product Safety Commission. Had the Supreme Court failed to put a stop to this madness, American consumers would have been without any real remedies for relief against those wrongdoers in Corporate America whose defective and unreasonably dangerous products hurt them.

Source: Wall Street Journal

SUPREME COURT REJECTS AGENT ORANGE CASES

The U.S. Supreme Court has turned down American and Vietnamese victims of Agent Orange who wanted to pursue lawsuits against companies that made the toxic chemical defoliant used in the Vietnam War. The justices, without an opinion, rejected appeals in three separate cases. The ruling was in favor of Dow Chemical, Monsanto and other companies that made Agent Orange and other herbicides used by the military in Vietnam. Agent Orange has been linked to cancer, diabetes and birth defects among Vietnamese soldiers and civilians and American veterans.

The American Plaintiffs blame their cancer on exposure to Agent Orange during their military service in Vietnam. The Vietnamese who filed suits said the sustained program by the United States to prevent the enemy from using vegetation for cover and sustenance caused miscarriages, birth defects, breast cancer, ovarian tumors, lung cancer, Hodgkin’s disease and prostate tumors. All three cases had been dismissed by the 2nd U.S. Circuit Court of Appeals in New York.

The appeals court said that lawsuit brought by the Vietnamese Plaintiffs could not go forward because Agent Orange was used to protect U.S. troops against ambush and not as a weapon of war against human populations. The other two suits were filed by U.S. veterans who got sick too late to claim a portion of the $180 million settlement with makers of the chemical in 1984. In 2006, the Supreme Court deadlocked 4-4 on whether those lawsuits could proceed. The 2nd Circuit judges ultimately said no in all cases. In one case, the court said companies are shielded from lawsuits brought by U.S. military veterans or their relatives because the law protects government contractors in certain circumstances who provide defective products. In the third suit, the Appeals Court ruled that the companies could transfer claims from state to federal courts.

Source: Associated Press

THE NRA WINS AGAIN

The U.S. Supreme Court has turned away requests by New York City and gun violence victims to hold the firearms industry responsible for selling guns that could end up in illegal markets. The Justices’ decision puts an end to lawsuits first filed in 2000. Federal appeals courts in New York and Washington threw out the complaints after Congress passed a law in 2005 giving the gun industry broad immunity against such lawsuits.

It should be noted that the city’s lawsuit asked for no monetary damages. Instead, it had sought a court order for gun makers to more closely monitor those dealers who frequently sell guns later used to commit crimes. But the 2nd U.S. Circuit Court of Appeals ruled that federal law provides the gun industry with broad immunity from lawsuits brought by crime victims and violence-plagued cities. The Supreme Court refused to reconsider that decision.

The lawsuit was first brought by the city in June 2000 while Rudy Giuliani was mayor. It was delayed due to the September 11, 2001 terrorist attacks on the World Trade Center and because of similar litigation in the state courts. The city refiled the lawsuit in January 2004, saying manufacturers let handguns reach illegal markets at gun shows in which non-licensed people can sell to other private citizens; through private sales in which background checks are not required; by oversupplying markets where gun regulations are lax; and by having poor overall security.

The city took the position that a state nuisance law makes it a crime to knowingly or recklessly create a condition endangering the safety or health of a considerable number of people. But the federal appeals court said New York’s law does not qualify as an exception to federal law. It agreed with a U.S. District Judge who said that the Protection of Lawful Commerce in Arms Act, which became law in 2005, is constitutional. The U.S. Supreme Court simply refused to take the case when the city sought relief. While the NRA wasn’t a party to this case, its power and influence played a definite role since the act in question was pushed through Congress by the gun lobby.

As a gun owner, who believes both in the Constitution and in the right of an individual to own a gun, I must confess that the easy availability of “assault rifles” for sale in this country bothers me. With all of the mass murders recently – where assault rifles were involved – perhaps Congress should take action to at least address that issue. Even though I have been a hunter for years, I have never seen anybody use an assault rifle on any type hunt that I was on.

Source: Associated Press

SUPREME COURT SIDES WITH CONSUMER IN DISPUTE WITH CREDIT CARD COMPANY

The U.S. Supreme Court has ruled that consumers can resist credit card companies’ push to move their disputes over finance charges and late fees to arbitration. The justices voted 5-4 in favor of Betty Vaden in her dispute with Discover Bank. Discover sued Ms. Vaden in Maryland state court in 2003, claiming she hadn’t paid more than $10,000 that was owed on her account. The woman then filed a class-action counterclaim in the case, saying the company’s finance charges and late fees violated state law. The bank then asked a federal court to force Ms. Vaden into arbitration over her claim.

But Justice Ruth Bader Ginsburg, writing for the majority, said state courts sometimes are the proper place for such lawsuits. She wrote: “Here, the controversy between Discover and Vaden was triggered by Discover’s garden-variety, state-law debt-collection claim against Vaden.” Most credit card customer service agreements require disputes over charges to be resolved by way of mandatory binding arbitration. They claim it’s cheaper and faster than a lawsuit which is not true.

A study by the Public Citizen consumer advocacy group found that arbitrators often rule in favor of the credit card companies, which came as no suprise. In this case, the issue was whether a federal court could step into what had been a state court lawsuit to order the parties into arbitration. This is a good decision by the Supreme Court and hopefully is a sign that at least five justices recognize that arbitration is not such a good thing for consumers.